G. BIKSHAPATHY, J.

( 1 ) THE matter has been referred to the Division Bench at the instance of our learned brother K. S. Srivastav, J. The case arose under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. The issue that is referred is as follows : "whether the Court can proceed with the case if it comes to its knowledge that the offence is committed during the pendency of the premature complaint. "

( 2 ) A few facts are necessary for proper appreciation of the case. The appellant is the complainant and the accused is the respondent in C. C. No. 108/91 on the file of II Additional Munsif Magistrate, Chirala. The respondent issued a cheque for Rs. 18,000/dated 30-4-1991 in favour of the appellant. The said cheque was dishonoured by the bank on 7-5-1991 and the same came to the knowledge of the appellant on 13-5-1991. The appellant, thereafter issued notice on 25-5-1991 through registered notice requiring the respondent to arrange payment. The said notice was returned to the appellant by the postal authorities stating that the respondent refused to accept the notice on 27-5-1991. The appellant filed criminal complaint before the II Additional Munsif Magistrate, Chirala on 3-6-1991. From the docket sheet of the Court below, it is seen that the learned Magistrate examined the complainant on 4-6-1991 and adjourned the case for hearing on 27-6-1991. Thereafter the complaint was taken on file in C. C. No. 108/91 on 5-7-1991 and summons were issued on 27-8-1993, the accused was acquitted. Against the said order the present appeal has been preferred by the appellant. The learned Magistrate held that the cause of action for filing the complaint under Section 142 of the Act arose only on 12-6-1991 and since the complaint was filed during the pre-offence period, the accused cannot be found guilty of the offence under Section 138 of the Act.

( 3 ) BEFORE delving into the legal aspects, it is necessary to extract Section 138 and Section 142 of the Act. Section 138 :"dishonour of cheque for insufficiency, etc. of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within fifteen days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payments of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Section 142 : Cognizance of offences :- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974); - (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date o

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